Citation Nr: 0604578
Decision Date: 02/16/06 Archive Date: 02/28/06
DOCKET NO. 98-15 038 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Atlanta,
Georgia
THE ISSUES
1. Entitlement to service connection for post-traumatic
stress disorder (PTSD).
2. Entitlement to service connection for a neck disability.
REPRESENTATION
Appellant represented by: Georgia Department of Veterans
Services
WITNESS AT HEARING ON APPEAL
The appellant
ATTORNEY FOR THE BOARD
Jeffrey Pisaro, Counsel
INTRODUCTION
The veteran had active service from August 1972 to August
1975.
This appeal arises from rating decisions of the Atlanta,
Georgia Regional Office (RO).
By rating decision in June 2005, service connection for a low
back disability was granted; accordingly, this issue is no
longer on appeal before the Board.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
resolution of the veteran's appeal has been obtained by the
RO.
2. The veteran currently suffers from PTSD that is
attributable to the verified fire-related stressor event in
Korea.
3. The veteran does not currently suffer from a neck
disability to include degenerative disc disease or arthritis
that was manifest in service, that was manifest within the
initial post service year, or that is related to disease or
injury during service.
CONCLUSIONS OF LAW
1. The veteran has PTSD that was incurred in active military
service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§3.303,
3.304(f) (2005).
2. A neck disability was not incurred in or aggravated by
active military service, nor may arthritis be presumed to
have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112,
1113, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309
(2005).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The service medical records from March 1973 reveal that the
veteran was treated for burns of the hand. An April 1973
report shows that the veteran had been hospitalized in Korea
because he reportedly had been harassed. The veteran had
become quite suspicious after his tent had caught fire during
a field exercise while the veteran had been asleep. He had
been slightly burned.
In April 1974, the veteran was hospitalized after being hit
in the back by a barrel of an eight inch howitzer on the day
of admission. He had been knocked forward and was admitted
with acute back pain. Past history was noncontributory. On
examination, there was acute low back pain. There was
tenderness over the thoracic and lumbosacral segments of the
spine. X-rays revealed no evidence of an acute fracture.
The veteran was discharged back to duty at the end of the
month. The discharge diagnosis was an acute contusion of the
lumbar area with no nerve or artery involvement.
The veteran was treated in May 1974 for a low back strain.
X-rays of the neck in May 1974 were interpreted as being
normal.
In October 1974, the veteran complained of stiffness of the
back, neck, legs, and sides after playing football. A
physical therapy note of the same day reported generalized
pain of the entire body.
On the separation examination in April 1975, the veteran
complained of chronic neck pain. An orthopedic consultation
was negative.
Medical history as reported by the veteran in April 1996 was
negative for recurrent neck pain.
A March 1997 private treatment note indicates that when
picking up a hog, the veteran had felt a pop from the neck to
the lower back.
VA x-rays of the neck in November 1997 were interpreted as
showing arthritis with displacement of C5-C6 and
straightening of the normal lordotic curvature.
A July 1997 statement indicates that the veteran had been
involved in a worker's compensation accident. Since that
time, the veteran had had neck pain.
On VA examination in February 1998, the diagnoses included
cervical nerve root irritation bilaterally.
A September 1998 Social Security Administration (SSA)
decision determined that the veteran was disabled for SSA
purposes for disorders to include disc disease, borderline
stenosis, and nerve root impairment of the neck.
An October 1998 VA medical record shows that a C5-C6
discectomy and fusion were performed.
In October 1999, the veteran filed a claim of service
connection for PTSD based on a reported stressor episode of
having been burned in a tent in Korea during service. When
the veteran awoke, he reported that the tent, his sleeping
bag, and his body were on fire.
The veteran testified in March 2000 that he injured his back
in service when an eight inch howitzer struck him knocking
him down; that he was hurting all over in October 1974 when
he was tackled from behind while playing football; and that
he had suffered from back pain over the years prior to
hurting his back in the meat cutting industry in 1997.
On VA examination in December 2000, it was concluded that
although the veteran complained of neck pain on service
separation, no diagnosis of neck disability had been made.
There was no further documentation of neck complaints until
1997 following a work injury that led to disc disease and
surgery. It was opined that it was more likely that the
cause of current neck disability was the 1997 injury and it
would be speculative to relate a current disability to
service.
VA outpatient treatment records from the early 2000s show
that the veteran received ongoing mental health care
treatment for disorders to include PTSD, not related to
combat, but in connection with a fire-related accident
involving his tent. It was noted that memories related to
this stressor event caused continuous PTSD related symptoms.
In June 2003, the veteran indicated that there were no
medical records from 1975 until 1997 relative to the neck as
he could not afford medical treatment and he had used over
the counter medications.
On VA psychiatric examination in June 2003, the examiner
found that the veteran's overall symptoms were not severe or
intense enough to warrant a diagnosis of PTSD.
On VA orthopedic examination in June 2003, the examiner
concluded that the veteran's neck was injured during service
and that the inservice injury more likely than not set the
stage for additional injury. Thus, it was more likely than
not that the 1997 work place accident resulted from the fact
that the veteran had a weakened back as he was not as agile
in getting out of the way of a pig carcass.
An April 2005 VA mental health note indicates that the
veteran remained in treatment for continuing PTSD symptoms
resulting from the stressor of having his hands on fire in
service. The assessment was PTSD.
On VA psychiatric examination in May 2005, it was noted that
the veteran's claims folder was reviewed. Chronic PTSD was
diagnosed as the veteran met the criteria for this disorder
associated with the tent fire in Korea. It was noted that
the veteran had not met the diagnostic criteria for PTSD on
VA examination in June 2003; however, the veteran currently
endorsed more PTSD symptoms and this finding was consistent
with the veteran's complaint that PTSD was growing worse. It
was also noted that the examiner in 2003 used a different
scoring rule which also might account for the difference.
The current diagnosis of PTSD was also consistent with the
diagnosis of his treating VA mental health providers.
On VA orthopedic examination in May 2005, it was noted that
the veteran had a history of neck pain that was consistent
with arthritis. The examiner opined that it was difficult to
relate current neck disability with an injury during service
as the service medical records did not include a history of a
significant neck injury. It was also noted that neck
arthritis was a disease that accumulated over many years of
usage and loading of the spine. Furthermore, neck problems
became increasingly manifest after the veteran was injured as
a meat cutter in 1997 which led to the fusion of the cervical
spine. The examiner concluded that there was no compelling
evidence to correlate current neck disability with the injury
sustained during service.
Service connection for PTSD
A claim of entitlement to service connection for PTSD
requires (1) medical evidence diagnosing PTSD in accordance
with the Diagnostic and Statistical Manual of Mental
Disorders - Fourth Edition, (2) a link, established by
medical evidence, between current symptoms and an in-service
stressor, and (3) credible supporting evidence that the
claimed in-service stressor occurred. 38 C.F.R. §§ 3.304(f);
4.125(a) (2005). If the evidence establishes that the
veteran engaged in combat with the enemy and the claimed
stressor is related to that combat, in the absence of clear
and convincing evidence to the contrary, and provided that
the claimed stressor is consistent with the circumstances,
conditions, or hardships of the veteran's service, the
veteran's lay testimony alone may establish the occurrence of
the claimed in-service stressor. 38 C.F.R. § 3.304(f)(1).
If the veteran did not engage in combat with the enemy, or if
the veteran in fact did engage in combat with the enemy but
the claimed stressor is not related to such combat, then the
veteran's testimony, by itself, will not be enough to
establish the occurrence of the alleged stressor. Instead,
the record must contain evidence that corroborates the
veteran's account as to the occurrence of the claimed
stressor. Cohen (Douglas) v. Brown, 10 Vet. App. 128 (1997).
Furthermore, service department records must support, and not
contradict, the claimant's testimony regarding non-combat
stressors. Doran v. Brown, 6 Vet. App. 283 (1994); see also
Suozzi v. Brown, 10. Vet. App. 307, 310-311 (1997)
(corroboration of every detail of a claimed stressor,
including personal participation, is not required;
independent evidence that the incident occurred is
sufficient); Pentecost v. Principi, 16 Vet. App. 124 (2002);
38 C.F.R. § 3.304(f).
The veteran contends that he has PTSD as the result of a
traumatic experience he endured while serving in Korea. He
has stated that while on a field exercise, his tent was set
on fire resulting in burns of the hands. A review of the
service medical records show that the veteran was treated in
March 1973 for burns of the hand after his tent had caught
fire during a field exercise.
Although the veteran did not receive an award indicative of
his participation in combat, the Board finds that the service
medical records unequivocally substantiate that the veteran's
claimed in-service fire-related stressor actually occurred.
See Suozzi and Pentecost.
In October 1999, the veteran filed the instant claim of
service connection for PTSD. VA mental health care records
demonstrate that the veteran has been receiving treatment for
PTSD that was not based on combat but was in connection with
the fire-related accident involving his tent during service.
Outpatient records, as recently as April 2005, continue to
reflect that the veteran's memories of this stressor event
caused continuous PTSD symptoms.
The veteran has received two VA psychiatric examinations.
Each examination reached a different conclusion. In June
2003, the examiner concluded that the veteran's overall
symptoms were not severe or intense enough to warrant a
diagnosis of PTSD. Conversely, the VA examiner in May 2005,
upon noting the 2003 examination report, indicated that the
veteran currently endorsed more PTSD symptoms which was
consistent with the veteran's report that his PTSD had grown
worse. The examiner further noted that the examiner in June
2003 had used a different scoring scale and it was emphasized
that the May 2005 report was consistent with the veteran's
ongoing VA mental health treatment. The examiner in May 2005
concluded that the veteran suffered from chronic PTSD based
on the fire-related incident in service.
The Board finds the May 2005 VA opinion to be well reasoned
and solidly based on the entire evidence of record. As a
result, this opinion is deemed to be both credible and
persuasive. Based on the May 2005 VA examination report and
the allied VA outpatient mental health records, the Board
concludes that the claim of service connection for PTSD is
supported by the evidence of record.
The Board also acknowledges the Veterans Claims Assistance
Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000)
(codified as amended at 38 U.S.C.A. §§ 5100, 5102, 5103,
5103A, 5106, 5107, 5126 (West Supp. 2005)). The Act imposes
certain notification requirements and clarified VA's duty to
assist claimants in developing evidence pertinent to their
claims. As the service connection issue on appeal is being
granted in full, the Board finds no prejudice has resulted to
the veteran's due process rights regardless of whether there
have been any deficiencies in the development of this issue
in terms of adjudicative compliance with the VCAA.
Service connection for a neck disability
Service connection means that the facts, shown by evidence,
establish that a particular injury or disease resulting in
disability was incurred in the line of duty in the active
military service or, if preexisting such service, was
aggravated by service. 38 U.S.C.A. § 1110 (West 2002); 38
C.F.R. § 3.303(a) (2005). Where a veteran served 90 days or
more during a period of war or during peacetime service after
December 31, 1946 and arthritis becomes manifest to a degree
of ten (10) percent or more within 1 year from date of
termination of such service, such disease shall be presumed
to have been incurred in service even though there is no
evidence of such disease during the period of service. This
presumption is rebuttable by affirmative evidence to the
contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002);
38 C.F.R. §§ 3.307, 3.309 (2005). With chronic disease shown
as such in service so as to permit a finding of service
connection, subsequent manifestations of the same chronic
disease at any later date, however remote, are service
connected, unless clearly attributable to intercurrent
causes. 38 C.F.R. § 3.303(b) (2005). Service connection may
be granted for any disease diagnosed after discharge, when
all the evidence, including that pertinent to service,
establishes that the disease was incurred in service. 38
C.F.R. § 3.303(d) (2005).
With regard to the claim for a neck disability, the service
medical records show that the veteran injured his low back in
April 1974 when he was hit in the back by an eight inch
howitzer. Following hospitalization, the discharge diagnosis
in April 1974 was an acute contusion of the low back. Neck
x-rays in May 1974 were normal. The veteran was treated in
October 1974 for stiffness of various joints to include the
neck after playing football; however, he reported generalized
pain of the entire body later that same day. On separation
from service in April 1975, the veteran complained of neck
pain, but examination was negative.
The Board notes that in the case of Sanchez-Benitez v. West,
13 Vet. App. 282 (1999), the Court determined that pain
alone, without a diagnosed or identifiable underlying
condition, does not in and of itself constitute a disability
for which service connection may be granted. In the instant
claim, as the service medical records only showed the
presence of neck pain, without a diagnosed underlying
disability, the Board finds that the evidence does not
demonstrate the presence of a chronic neck disability during
service.
Following service, the medical record is silent from 1975
until the late 1990s when the veteran hurt his neck in a work
related accident in March 1997. The veteran has indicated in
writing that he did not receive medical treatment for
disability of the neck between service and 1997. He did
indicate that he had self-medicated for pain.
Service connection generally requires evidence of a current
disability with a relationship or connection to an injury or
disease or some other manifestation of the disability during
service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir.
2000); Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998)
(citing Cuevas v. Principi, 3 Vet. App. 542, 548 (1992)).
Where the determinative issue involves medical causation or a
medical diagnosis, there must be competent medical evidence
to the effect that the claim is plausible; lay assertions of
medical status do not constitute competent medical evidence.
Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). The
United States Court of Appeals for the Federal Circuit has
determined that a significant lapse in time between service
and post-service medical treatment may be considered as part
of the analysis of a service connection claim. See generally
Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000).
Alternatively, the nexus between service and the current
disability can be satisfied by medical or lay evidence of
continuity of symptomatology and medical evidence of a nexus
between the present disability and the symptomatology. See
Voerth v. West, 13 Vet. App. 117 (1999); Savage v. Gober, 10
Vet. App. 488, 495 (1997).
The first post service medical evidence of a chronic neck
disability is found in March 1997 when the veteran reported
having suffered an industrial injury. The resolution of this
case will hinge on whether there is adequate medical evidence
of a nexus between current neck disability and the veteran's
service. The Board has the duty to assess the credibility
and weight to be given the evidence relative to this issue.
Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992) (quoting
Wood v. Derwinski, 1 Vet. App. 190, 193 (1991),
reconsideration denied per curiam, 1 Vet. App. 406 (1991)).
There are three medical opinions with regard to the veteran's
claim.
A VA examiner in December 2000 concluded that no diagnosis of
neck disability had been made in service and opined that it
was more likely that a current neck disability was caused by
the industrial accident in 1997. It was further noted that
any nexus to service would merely be resorting to
speculation.
In May 2005, a VA examiner opined that there was no
compelling evidence to correlate a current neck disability
with service as the service medical records did not include a
history of a significant neck injury. It was noted that
arthritis was a disease that accumulated over any years of
usage, and was further noted that the veteran's neck problems
had become increasingly manifest after the 1997 accident.
The only VA opinion positive to the veteran's claim is found
in the June 2003 VA examination report. This opinion lacks
probative value, however, as it was based on a flawed factual
predicate; that is, that the 1997 work accident resulted from
the fact that the veteran had a weakened back as he was not
as agile in avoiding a "falling hog." There is simply no
medical evidence to support the proposition that the 1997
accident was caused by a weakened back dating from service.
In fact, the contemporaneous March 1997 private medical
report shows that the veteran had been trying to pick-up a
hog. As a result, the Board will not accord significant
probative value to this opinion.
After a review of all the lay and medical evidence of record,
the Board finds that a preponderance of the evidence
demonstrates that all currently diagnosed neck disabilities,
to include arthritis, were not present during service or for
many years thereafter. The question of whether any current
neck disability is etiologically related to injury or disease
in service is solely within the province of health care
professionals who are qualified to enter a medical diagnosis
or an opinion as to the relationship between a current
disability and service. See Espiritu at 494-95. Therefore,
the veteran's statements and testimony do not constitute
probative nexus evidence.
The Board has considered the doctrine of affording the
veteran the benefit of any existing doubt with regard to the
claim for service connection; however, as the preponderance
of the evidence is against the veteran's claim, the record
does not demonstrate an approximate balance of positive and
negative evidence as to warrant the resolution of this issue
on that basis. In short, the competent medical nexus
evidence does not establish a connection between a current
chronic neck disability and the veteran's service. 38
U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102.
The Veterans Claims Assistance Act of 2000
The Veterans Claims Assistance Act of 2000 (VCAA) describes
VA's duty to notify and assist claimants in substantiating a
claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103,
5103A, 5107, 5126 (West 2002 & Supp. 2005); 38 C.F.R.
§§ 3.102, 3.156(a), 3.159 and 3.326(a) (2005).
Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant and his or her representative, if any, of any
information, and any medical or lay evidence, that is
necessary to substantiate the claim. 38 U.S.C.A. § 5103(a)
(West 2002 & Supp. 2005); 38 C.F.R. § 3.159(b) (2005);
Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA
notice must inform the claimant of any information and
evidence not of record (1) that is necessary to substantiate
the claim; (2) that VA will seek to provide; (3) that the
claimant is expected to provide; and (4) must ask the
claimant to provide any evidence in her or his possession
that pertains to the claim in accordance with 38 C.F.R.
§ 3.159(b)(1). VCAA notice should be provided to a claimant
before the initial unfavorable agency of original
jurisdiction (AOJ) decision on a claim. Pelegrini v.
Principi, 18 Vet. App. 112 (2004); see also Mayfield v.
Nicholson, 19 Vet. App. 103 (2005).
VA has a duty to notify a claimant if his or her application
for benefits is incomplete. The required notice must inform
the applicant of any information necessary to complete the
application. 38 C.F.R. § 3.159(b)(2) (2005). The purpose of
the first notice is to advise the claimant of any
information, or any medical or lay evidence not previously
provided to the Secretary that is necessary to substantiate
the claim. In this case, the veteran's application is
complete. There is no outstanding information required, such
as proof of service, type of benefit sought, or status of the
veteran, to complete the application.
Once VA is in receipt of a complete or substantially complete
application, VA must provide certain additional notices. As
noted above, there is an enhanced duty on the part of VA to
notify a claimant of the information and evidence necessary
to substantiate a claim for VA benefits and which evidence,
if any, the veteran is expected to obtain and submit, and
which evidence will be retrieved by VA. Quartuccio, supra.
In those cases where notice is provided to the claimant,
notice is to be provided to advise that if such information
or evidence is not received within one year from the date of
such notification, no benefit may be paid or furnished by
reason of the claimant's application. 38 U.S.C.A. § 5103(b)
(West 2002 & Supp. 2005). In addition, 38 C.F.R. § 3.159(b)
details the procedures by which VA will carry out its duty to
provide notice.
The Board has conducted a complete and thorough review of the
appellant's claims folder. The Board finds that the RO has
fulfilled the notice requirements of the VCAA. The RO sent
the appellant letters in May 2001, January 2004, and April
2005 as well as a statement of the case in August 1998 and
several supplemental statements of the case to include in
July 2003 and June 2005, which notified the appellant of the
type of evidence necessary to substantiate his claim. The
documents also informed him that VA would assist in obtaining
identified records, but that it was the appellant's duty to
give enough information to obtain the additional records and
to make sure the records were received by VA. See Quartuccio
v. Principi, 16 Vet. App. 183 (2002) (holding that both the
statute, 38 U.S.C.A. § 5103(a), and the regulation, 38 C.F.R.
§ 3.159, clearly require the Secretary to notify a claimant
which evidence, if any, will be obtained by the claimant and
which evidence, if any, will be retrieved by the Secretary).
The above documents also informed the appellant about the
information and evidence he is expected to provide.
VA also has a duty to assist the appellant in obtaining
evidence necessary to substantiate his claim. See 38
U.S.C.A. § 5103A (West 2002 & Supp. 2005); 38 C.F.R.
§ 3.159(c). The Board notes that the VCAA's duty-to-assist
provision under 38 C.F.R. § 3.159 has been fulfilled. This
section of the new regulation sets forth several duties for
VA in those cases where there is outstanding evidence to be
obtained and reviewed in association with a claim for
benefits. VA must make reasonable efforts to assist the
claimant in obtaining evidence necessary to substantiate the
claim for the benefit sought, unless no reasonable
possibility exists that such assistance would aid in
substantiating the claim. 38 C.F.R. § 3.159(c), (d) (2005).
To the extent possible, VA has obtained all pertinent records
from sources identified by the veteran in relation to his
claim. In this regard, all available VA, private, and Social
Security Administration medical records have been obtained.
The veteran also provided testimony at a March 2000 Travel
Board hearing.
The duty to assist also includes providing a medical
examination or obtaining a medical opinion when such is
necessary to make a decision on the claim. 38 C.F.R.
3.159(c)(4) (2005). In this case, the veteran was afforded
VA examinations in December 2000, June 2003, and May 2005 to
include opinions as to whether a current neck disability is
related to service. The VA examinations and opinions are
adequate to fully and fairly evaluate the veteran's appeal.
As an additional examination is unnecessary, the Board finds
that the RO has satisfied the duty-to-assist obligations with
respect to medical examinations.
The Board finds that every effort has been made to seek out
evidence helpful to the veteran. Therefore, the Board finds
that VA has complied with the duty-to-assist requirements
found at 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c)-(e).
The United States Court of Appeals for Veteran Claims'
(Court's) decision in Pelegrini v. Principi, 18 Vet. App. 112
(2004) held, in part, that a VCAA notice, as required by
38 U.S.C. § 5103(a), must be provided to a claimant before
the initial unfavorable agency of original jurisdiction (AOJ)
decision on a claim for VA benefits.
The Board acknowledges that the initial VCAA notice letter
was sent to the appellant after the initial rating decision
that is the basis for this appeal. The appellant, as a
result, has the right to content-complying notice and proper
subsequent VA process. Here, the Board finds that any defect
with respect to the timing of the VCAA notice requirement was
harmless error. While the notice provided to the appellant
was not given prior to the first AOJ adjudication of the
claim, notice was provided by the AOJ in April 2005 prior to
the transfer and recertification of the appellant's case to
the Board after the February 2005 Board remand and the
context of the notice fully complied with the requirements of
38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). Thereafter,
the instant claim was readjudicated and a Supplemental
Statement of the Case (SSOC) was provided to the appellant in
June 2005. The claimant, therefore, has been provided with
every opportunity to submit evidence and argument in support
of his claim, and to respond to VA notices.
Therefore, not withstanding Pelegrini, to decide the appeal
would not be prejudicial error to the claimant.
ORDER
Entitlement to service connection for post-traumatic stress
disorder is granted.
Entitlement to service connection for a neck disability is
denied.
____________________________________________
ROBERT E. SULLIVAN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs